December 7, 2021

Determining the prevailing party for the purpose of awarding attorney fees and litigation costs in a lawsuit brought pursuant to the Freedom of Information Law

In the Matter of Rosasco v St. James Fire District, 2021 NY Slip Op 06692, decided on December 1, 2021, Troy Rosasco [Petitioner] initiated a proceeding pursuant to CPLR Article 78 to compel the St. James Fire District [Respondents] to comply with a series of requests for documents he made pursuant to the Freedom of Information Law [FOIL]* Respondents moved to dismiss the petition. 

The Supreme Court, among other things, granted the Respondents' motion to dismiss the proceeding and rejected Petitioner's application for an award of attorneys' fees and other litigation costs based on Petitioner's claim that he was the "prevailing party".

In response to Petitioner's appeal of the Supreme Court's ruling, the Appellate Division held that "Supreme Court properly determined that the branch of the Article 78 petition which sought to compel the production of the documents Petitioner sought "was rendered academic" by the Respondents'  disclosure of the materials demanded by Petitioner after Petitioner initiated his Article 78 action.

Citing Matter of Edmond v Suffolk County, 197 AD3d 1297among other decisions, the Appellate Division explained that where, as here, a petitioner receives "an adequate response to a FOIL request during the pendency of a CPLR Article 78 proceeding, the proceeding should be dismissed as academic because a determination will not affect the rights of the parties."

As to an award of "attorneys' fees and other litigation cost", the Appellate Division opined that Supreme Court properly denied Petitioner's application for such costs as Petitioner "did not establish that the [Respondents] failed to respond to his multiple FOIL requests ... 'Nor did [Petitioner] establish that the [Respondents] denied access to any records without a reasonable basis.'"

In addition, the Appellate Division held that the Supreme Court properly denied that branch of his petition with respect to Petitioner application for a court order directing the retraining of certain employees of the Respondents, citing Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405.

In contrast, in Matter of Jack Jaskaran, [Plaintiff] v The City of New York [Respondents], 2021 NY Slip Op 06762, decided December 2, 2021, the Appellate Division unanimously modified, on the law, Supreme Court's ruling addressing  Plaintiff''s request for attorneys' fees, and remand the matter to lower court for further proceedings consistent it ruling on the issue.

The court opined that Plaintiff had established that he is entitled to recover attorneys' fees, since he had substantially prevailed in the Article 78 proceeding and Respondents had "no reasonable basis for denying access" to the records Plaintiff sought pursuant to the Freedom of Information Law.

In responding to Plaintiff's FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, Respondents, relying on Public Officers Law §87(2)(d, among other sections of the statute, produced only the manual's cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual's developer to release the rest of the manual.

After Plaintiff commenced his Article 78 proceeding, however, Respondents produced the rest of the manual in unredacted form, except for the appendices, with its response to the petition.

Under these circumstances, opined the Appellate Division, Plaintiff substantially prevailed within the meaning of Public Officers Law §89(4)(c), citing Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67.

Further, said the Appellate Division, Respondents did not established that they had a "reasonable basis" for withholding production under Public Officers Law §87(2)(d) and conceded that it sought permission from the manual's developer to release the information only after receiving the Article 78 petition, suggesting that the disclosure was prompted solely by Plaintiff's resort to litigation and that Respondents could have sought permission in response to the FOIL request itself.

This, opined the court, militates against a finding that the Respondent had a "reasonable basis" for withholding production of the material sought by Plaintiff, citing Matter of Madeiros, 30 NY3d at page 79.

* Public Officers Law Article 6, typically referred to as "FOIL".

Click HEREto access the Appellate Division's decision in Rosasco.

Click HEREto access the Appellate Division's decision in Jaskaran.

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